UNITED STATES of America, Appellant, v. Jose MENDOZA-LOPEZ, Appellee; UNITED STATES of America, Appellant, v. Angel LANDEROS-QUINONES, Appellee, 781 F.2d 111

HEANEY, Circuit Judge. The United States appeals from the dismissal of the indictments against two illegal immigrants in this 8 U.S.C. § 1326 proceeding. For the reasons set forth below, we affirm. BACKGROUND Jose Mendoza-Lopez and Angel Lande-ros-Quinones were illegal immigrants from Mexico. They lived in the United States for more than seven years when they were picked up by agents of the Immigration and Naturalization Service in Nebraska. After a hearing at which they were not represented by counsel, they were deported.

Six weeks after deportation, they were arrested in Lincoln, Nebraska, on charges of re-entry without authorization under 8 U.S.C. § 1326. At trial, defendants moved to suppress evidence of their deportation. The government argued that the motion amounted to an impermissible collateral attack on deportation orders, and that, nevertheless, the defendants’ constitutional rights had not been violated.

The district court concluded that defendants could attack the deportation procedure and that the lack of legal counsel at the deportation hearing, combined with the defendants’ inability to understand the proceedings, violated the concept of fundamental fairness. The unlawful presence charges were dismissed. On appeal, the government argues that the trial court erred by permitting the defendants to collaterally attack their deportation orders and, in any event, that the defendants were afforded due process at the deportation hearing.

DISCUSSION The Supreme Court has expressly reserved the question of whether a defendant can collaterally attack a deportation order. United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863 (1952). The United States Circuit Courts which have addressed this issue are split. The more restrictive view is found in the Tenth, Fifth and Second Circuits. See Arriaga-Ramirez v. United States, 325 F.2d 857 (10th Cir.1963); United States v. Gonzalez-Parra, 438 F.2d 694 (5th Cir.1971); United States v. Petrella, 707 F.2d 64 (2d Cir.1983).

These Courts reason that since Congress has provided three separate avenues for appeals of administrative deportation findings, see 8 U.S.C. § 1105a, it intended to foreclose the possibility of collateral attack on such orders in

section 1326 prosecutions. The Ninth, Third and Seventh Circuits, on the other hand, permit collateral attackes on deportation orders. See United States v. Bowles, 331 F.2d 742 (3rd Cir.1964); United States v. Gasca-Kraft, 522 F.2d 149 (9th Cir.1975); United States v. Rosal-Aguilar, 652 F.2d 721 (7th Cir.1981). These Courts reason that a material element of the offense prohibited by 8 U.S.C. § 1326 is a “lawful” deportation and that, therefore, when prosecuting a

section 1326 proceeding, the government must prove beyond a reasonable doubt that the defendant illegally entered the United States after being deported according to law. Gasca-Kraft, 522 F.2d at 152. Under this reasoning, the defendant must be able to contest the lawfulness of the deportation in the

section 1326 proceeding. We agree with this rationale. Allowing a pretrial review of the underlying deportation to examine whether due process was provided insures fundamental fairness to the rights of the criminal defendant. Accordingly, we conclude that defendants in

section 1326 prosecutions may collaterally attack their previous deportation orders on the ground that they were not accorded due process at the deportation hearing. The next question is whether the district court erred in finding a due process violation. Our review of the record reveals that the district court’s conclusion is not clearly erroneous. Both defendants had been continuously present in the United States for a period exceeding seven years at the time of the deportation hearing. They were therefore eligible for suspension of deportation.

The Immigration Law Judge (IU) did not adequately inform the defendants about this alternative relief, as is required by 8 C.F.R. § 242.17(2). The defendants did not understand the consequences of the choices that they were forced to make. Had they been fully aware of such consequences, there is a substantial likelihood that the result of the hearing would have been “materially affected.” Therefore, the defendants demonstrated prejudice from the IU’s failure to fully comply with the provisions of 8 C.F.R. § 242.17.

Because the defendants did not fully understand the proceedings, the hearing was fundamentally unfair, and the deportation order was obtained unlawfully. Thus, it cannot stand as a material element forming the basis of the charges against the defendants. The indictments were properly dismissed. Accordingly, we affirm. . The government argues that the Supreme Court's intent to prohibit collateral attacks in

section 1326 proceedings was made apparent in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). In Lewis, the Court held that the defendant, in a prosecution for possession of a firearm by a felon, could not collaterally attack his prior conviction, even though the court assumed that the conviction was the result of an uncounseled guilty plea.

The Court relied upon the language of the statute itself, noting that the prior conviction was not required to be "valid,” and the statutory history, which disclosed an intent by Congress to enact "a sweeping prophylaxis, in simple terms, against misuse of firearms.” Id., 445 U.S. at 63, 100 S.Ct. at 920. Lewis is not controlling. In Lewis the prior decision was judicial, not administrative.

Moreover, while it can be said that Congress had a legitimate interest in prohibiting the possession of firearms by those whose brushes with the law resulted only in invalid convictions, it cannot likewise be said that Congress intended to expel from this country all aliens, even those who have a legitimate right to be here.